No. 17-15288 In the United States Court of Appeals …...Haynes and Boone, LLP 600 Anton Blvd. Suite...
Transcript of No. 17-15288 In the United States Court of Appeals …...Haynes and Boone, LLP 600 Anton Blvd. Suite...
Mary-Christine Sungaila Marco A. Pulido Haynes and Boone, LLP 600 Anton Blvd. Suite 700 Costa Mesa, CA 92626 Telephone: 949-202-3000 [email protected] [email protected]
Paula M. Mitchell
Loyola Law School 919 Albany St.
Los Angeles, CA 90015 Telephone: 213-736-1000
Certified Law Students: Weston Rowland
Daniel Seabolt Suzie Vardanyan
Pro Bono Appointed Counsel for Plaintiff-Appellee Jose Abel Fierro
No. 17-15288 In the United States Court of Appeals
for the Ninth Circuit
JOSE ABEL FIERRO,
Plaintiff-Appellee,
v.
KEITH SMITH, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the District of Arizona
Paul G. Rosenblatt, District Judge Case No. 2:13-cv-02173-JJT-BSB
PLAINTIFF-APPELLEE JOSE ABEL FIERRO’S ANSWERING BRIEF
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TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS ............................................................................ ii
TABLE OF AUTHORITIES ....................................................................... v
STATEMENT OF JURISDICTION ........................................................... 1
STATEMENT OF THE ISSUES ................................................................ 2
STATEMENT OF THE CASE ................................................................... 3
A. As an Arizona Republic investigation found, inmate-on-inmate assaults and homicides were increasingly common in Arizona prisons between 2009 and 2011. ................ 3
B. Arizona prisons’ protective custody policy. ................................. 3
C. Between 2011 and 2014, Fierro repeatedly sought protective custody after multiple threats and assaults by gang members, and was denied six times. ............................ 5
1. Defendants deny Fierro’s first request for protective custody after he was assaulted by his cellmate Nieto, a Border Brother. ................................................................... 5
2. Defendants deny Fierro’s second request for protective custody after he was twice assaulted by Border Brothers on the same day. ......................................... 6
3. Defendants deny Fierro’s third request for protective custody after another inmate told him that he was not safe in general population. .............................................. 8
4. Defendants deny Fierro’s fourth request for protective custody after he received a threat from two inmates who told him that he was on the “list.” .......... 10
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5. Defendants deny Fierro’s fifth request for protective custody after he received a note from The Raza offering protection from the Border Brothers. .................... 10
6. Defendants deny Fierro’s sixth request for protective custody after he was threatened by another inmate. ......... 11
7. Two Border Brothers attack Fierro within fifteen minutes of Fierro’s arrival to the Lewis-Morey Unit and he again requests protective custody. This time, he receives protective custody. ............................................ 12
D. Fierro files this action pro se against the officers who refused his requests for protective custody. ............................. 13
E. Defendants move for summary judgment, arguing that they responded reasonably to the risk of harm and that they did not violate clearly established law because they followed policy. ........................................................................... 14
F. Fierro opposes summary judgment. .......................................... 15
G. Defendants reply to Fierro’s opposition. ................................... 17
H. The district court denies summary judgment, finding triable issues of material fact and a violation of clearly established Eighth Amendment law under Fierro’s version of the events. ................................................................. 18
I. The district court denies Defendants leave to file a second motion for summary judgment ...................................... 20
J. This interlocutory appeal follows. ............................................. 21
SUMMARY OF ARGUMENT .................................................................. 21
STANDARD OF REVIEW ........................................................................ 24
ARGUMENT ............................................................................................. 25
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This Court Should Affirm the Denial of Summary Judgment I.on Qualified Immunity and Allow Fierro’s Eighth Amendment Claim to Proceed. ......................................................... 25
A. Overview: qualified immunity standard. .................................. 25
B. The limits of interlocutory review. ............................................ 27
C. Defendants’ failure to grant protective custody was unreasonable in light of the serious risk of harm Fierro faced from not being removed from the Border Brothers gang, and violated the Eighth Amendment. ............................. 31
1. Defendants do not dispute that Fierro faced an objectively serious risk of harm from being targeted by the Border Brothers Gang. ............................................. 31
2. Defendants knew Fierro faced a substantial risk of harm and failed to take reasonable measures to remove Fierro from the Border Brothers Gang. ................. 35
D. Given the limits of interlocutory review, this Court has no jurisdiction to assess the sufficiency of Fierro’s evidence as to causation. Even if this Court did have jurisdiction, however, it should affirm the district court’s assessment that material triable issues precluded summary judgment on this element as well. .......... 52
E. Clearly established law fairly warned Defendants that they were violating the Eighth Amendment. ........................... 56
CONCLUSION ......................................................................................... 63
Certificate of Compliance ......................................................................... 64
Statement of Related Cases ..................................................................... 65
Certificate of Service ................................................................................ 66
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TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Creighton, 483 U.S. 635 (1987) .............................................................................. 59
Anthony v. Schackmann, 402 F. App’x 207 (9th Cir. 2010) ......................................................... 54
Barnard v. Cty. of Los Angeles, No. CV0505611GAFFMOX, 2011 WL 13213574 (C.D. Cal. June 23, 2011) ............................................................................................... 58
Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986) ........................................ 45, 47, 49, 56, 57
Bingham v. City of Manhattan Beach, 341 F.3d 939 (9th Cir. 2003) ................................................................ 24
Brown v. N. Carolina Dep’t of Corr., 612 F.3d 720 (4th Cir. 2010) .......................................................... 31, 35
Case v. Ahitow, 301 F.3d 605 (7th Cir. 2002) .......................................................... 37, 57
Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) ...................................................... passim
Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001) .................................................... 45, 46, 49
Cunningham v. City of Wenatchee, 345 F.3d 802 (9th Cir. 2003) ...................................................... 1, 25, 27
David v. Hill, 401 F. Supp. 2d 749 (S.D. Tex. 2005) .................................................. 32
Elder v. Holloway, 510 U.S. 510 (1994) .............................................................................. 24
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Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002) ...................................................... passim
Farmer v. Brennan, 511 U.S. 825 (1994) ............................................................ 26, 37, 41, 56
Gardner v. Howard, 109 F.3d 427 (8th Cir. 1997) ................................................................ 62
Garrett v. Stratman, 254 F.3d 946 (10th Cir. 2001) ........................................................ 29, 53
Hamilton v. Leavy, 117 F.3d 742 (3d Cir. 1997) ......................................................... passim
Hope v. Pelzer, 536 U.S. 730 (2002) .................................................................. 51, 56, 63
Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008) .................................................... passim
Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001) ................................................................ 27
Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) .......................................................... 53, 54
Johnson v. Jones, 515 U.S. 304 (1995) .............................................................................. 27
Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012) .................................................... 3, 25, 37
Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004) ............................................................. 54, 55
Knox v. Sw. Airlines, 124 F.3d 1103 (9th Cir. 1997) .......................................................... 1, 28
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Leach v. Carey, No. 100CV06139LJOGSAP, 2008 WL 618955 (E.D. Cal. Mar. 6, 2008), aff’d sub nom. Leach v. Drew, 385 F. App’x 699 (9th Cir. 2010) ............................................................................................... 57, 58
Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062 (9th Cir. 2013) .............................................................. 26
Lewis v. Richards, 107 F.3d 549 (7th Cir. 1997) .................................................... 31, 35, 44
Maropulos v. Cty. of L.A., 560 F.3d 974 (9th Cir. 2009) ................................................................ 62
Martinez v. Stanford, 323 F.3d 1178 (9th Cir. 2003) .............................................................. 25
Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016) ...................................................... passim
Pearson v. Callahan, 555 U.S. 223 (2009) .............................................................................. 21
Reece v. Groose, 60 F.3d 487 (8th Cir. 1995) ............................................................ 31, 35
Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001) .......................................................... 56, 58
Rodriguez v. Sec’y for Dep't of Corr., 508 F.3d 611 (11th Cir. 2007) ...................................................... passim
Scinto v. Stansberry, 841 F.3d 219 (4th Cir. 2016), cert. denied sub nom. Phillip v. Scinto, No. 16-1545, 2017 WL 2734638 (U.S. Nov. 13, 2017) ............ 52
Slone v. Dep’t of Ariz. Corr., 308 F. App’x 110 (9th Cir. 2009) ......................................................... 45
Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008) ........................................................ 44, 49
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United States v. Bogle, 689 F. Supp. 1121 (S.D. Fla. 1988) ...................................................... 51
Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989) .................................................. 31, 32, 35
Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995) .......................................................... 37, 43
Walsh v. Mellas, 837 F.2d 789 (7th Cir. 1988) ................................................................ 31
Walton v. Dawson, 752 F.3d 1109 (8th Cir. 2014) .............................................................. 61
Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996) ........................................................... 30, 43
White v. Pauly, 137 S. Ct. 548 (2017) ............................................................................ 56
Yellow Horse v. Pennington Cty., 225 F.3d 923 (8th Cir. 2000) .................................................... 15, 20, 61
Statutes
28 U.S.C. § 1291........................................................................................ 27
42 U.S.C. § 1983........................................................................................ 56
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STATEMENT OF JURISDICTION
This Court has jurisdiction over this interlocutory appeal of an
order denying summary judgment on qualified immunity grounds to
review only a limited set of questions: whether, drawing all inferences
in favor of Fierro, his Eighth Amendment claim raised material issues
concerning the existence of a clearly established constitutional
violation. See Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th
Cir. 2003); see also Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir.
2016). However, this Court lacks “jurisdiction over an interlocutory
appeal that focuses on whether there is a genuine dispute about the
underlying facts.” Knox v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir.
1997). Thus, this Court “cannot review” whether “there was insufficient
evidence to show that” Fierro faced an objectively serious risk of harm,
that “the [Defendants] acted with deliberate indifference, or that there
was a causal relationship” between Defendants’ unlawful conduct and
Fierro’s injuries. See Pauluk, 836 F.3d at 1121.
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STATEMENT OF THE ISSUES
1. An inmate repeatedly seeks to be placed in protective custody1
after reporting to prison officials that he is being targeted, threatened,
and assaulted by prison gang members. The officials are aware of these
reports and post-assault medical records. Do the prison officials act
unreasonably and violate the Eighth Amendment by refusing to put the
inmate in the only place where he will be removed from the gang:
protective custody?
2. In light of an inmate’s clearly established right to be free from
violence at the hands of other inmates and the consensus of authority
holding that prison officials cannot unreasonably deny protective
custody to an inmate who is targeted by a pervasive gang with a
substantial presence in the prison, would a reasonable official in
Defendants’ position have known that he was acting unlawfully?
1 Protective custody offers the “greatest degree of protection” to an inmate within the Arizona Department of Corrections who “is in need of protection from other inmates,” and requires that an inmate in protective custody be housed only with other inmates who have received protective custody as well. ER 295-1–2 ¶¶ 1–2.
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STATEMENT OF THE CASE2
A. As an Arizona Republic investigation found, inmate-on-inmate assaults and homicides were increasingly common in Arizona prisons between 2009 and 2011.
According to the Arizona Republic, between fiscal year 2009 and
2011, prisons within the Arizona Department of Corrections were
among the deadliest in the Nation, with a homicide rate more than
double the national average. ER 325-44. In fact, inmate-on-inmate
assaults increased by 90 percent in that timeframe. Id. Inmate
homicides were either perpetrated by violent cellmates or prison gangs.
Id. For example, one Arizona prison inmate was beaten to death after
prison officials reportedly transferred him—as well as the individuals
who targeted the inmate—to the same facility. Id.
B. Arizona prisons’ protective custody policy.
The Arizona Department of Corrections has a procedure for
evaluating protective-custody requests, which inmates may make in
verbal or written form. ER 295-151. This process requires, at a
2 At this stage, “all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff’s favor.” Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012). The statement of the case is set forth consistent with that standard.
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minimum, four prison officials to investigate and determine whether a
threat exists to the requesting inmate; at each step, the entire
protective custody file is reviewed so that each officer knows all of the
information contained therein. See ER 295-150–172; 295-155 ¶ 1.6; 295-
157 ¶ 1.2.3; 295-159 ¶ 1.2.2.
After an initial investigation by a shift commander and a
Corrections Officer IV (“COIV”), the protective custody request and file
are received by a Deputy Warden (“DW”), who assess whether
additional investigation is required. See ER 295-154–57 If the Deputy
Warden determines that additional investigation is required, the file is
sent back to the officer who handled the initial investigation. Id. If the
Deputy Warden makes a recommendation to deny or approve protective
custody, the file and recommendation are forwarded to the Protective
Custody Administrator (“PCA”). Id.
The PCA reviews the entire protective custody file (including prior
protective custody requests), makes the final decision as to whether
protective custody is warranted, and provides a written explanation if
the PCA’s decision differs from the Deputy Warden’s. ER 295-157–58;
295-157 ¶1.1.1; 295-146 (listing summary of Fierro’s prior protective
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custody requests). The inmate may appeal the PCA’s decision to the
Security Operations Administrator (“SOA”), who reviews the protective
custody file and makes the final decision. ER 295-159.
C. Between 2011 and 2014, Fierro repeatedly sought protective custody after multiple threats and assaults by gang members, and was denied six times.
Between January 2011 and December 2013, Protective Custody
Administrator Coffey, Security Operations Administrator Smith,
Deputy Warden Ochoa, Deputy Warden Sanders, Deputy Warden
Pruett, and Deputy Warden Forester (collectively, the “Defendants”)
refused Plaintiff-Appellee Jose Abel Fierro’s (“Fierro”) requests to be
placed in protective custody—protection Fierro sought in order to
escape the “Border Brothers,” a prison gang pervasive enough to
warrant recognition as a security threat group within the Arizona
Department of Corrections. See ER 295-5, 8–10; 295-134, 146.
1. Defendants deny Fierro’s first request for protective custody after he was assaulted by his cellmate Nieto, a Border Brother.
In late January 2011, Fierro was housed at the Lewis-Rast Unit
and a Mexican Mafia member, “Rock,” told Fierro that prison official
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Perry told him and “several” others to “keep an eye on” Fierro. ER 325-8
¶¶ 9–11. These inmates inferred from Perry’s statement that Perry was
“accus[ing]” Fierro of “‘snitch[ing]’ on them.” ER 325-8 ¶ 11.
The next day, Fierro’s cellmate and Border Brother member,
Nieto, confronted Fierro with Perry’s accusations, called Fierro a “rat”
and a “snitch,” and “started pushing and shoving” Fierro. ER 325-9 ¶
12. Fierro and Nieto fought, and Fierro broke his hand by inadvertently
hitting a wall during the course of the altercation. Id. Fierro requested
protective custody, and two of the Defendants—Security Operations
Administrator Smith and Protective Custody Administrator Coffey, via
her designee (Jerry Eitniear)—refused to recommend or grant
protective custody. ER 325-11–12 ¶¶ 19(19)–(20); 295-20; 295-158 ¶1.5.
Fierro was instead provided with “alternate placement” and transferred
to the Tucson-Cimarron Unit in March 2011. ER 325-13 ¶ 24.
2. Defendants deny Fierro’s second request for protective custody after he was twice assaulted by Border Brothers on the same day.
At the Tucson-Cimarron Unit, prison staff housed Fierro, a 54-
year-old suffering from various physical ailments, with “the head”—a
slang term for the leader—of the Border Brothers: Jose Molina-
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Gastelum (“Molina-Gastelum”). ER 325-13 ¶ 24; 295-49. In early March
2011, Molina-Gastelum searched Fierro’s personal effects and read his
court documents, which showed that Fierro told police officers that
other individuals were involved in a crime. ER 325-13–14 ¶ 25. A few
days later, on March 11, Molina-Gastelum jettisoned scalding water
directed at Fierro’s face, and an altercation between the two ensued.
ER 325-14 ¶ 26.
Immediately after this assault, Molina-Gastelum was taken to the
medical center—but not before instructing two Border Brothers (Lopez
and Nunez) to “take care” of Fierro. ER 325-14–15 ¶ 26. These two
Border Brothers, along with a third—Valenzuela—assaulted Fierro,
causing severe injuries. ER 325-14–15 ¶¶ 26–27; see also ER 325-69–70
(Alan Werner’s declaration corroborating Fierro’s account).
After the twin beatings of March 11, prison staff documented a
3.5” laceration on Fierro’s forehead and medical staff saw Fierro for an
“assault” at the request of “Sgt. K.” ER 295-58; 325-71. Afterward,
Fierro requested protective custody, but three of the Defendants—
Deputy Warden Ochoa, Protective Custody Administrator Coffey, and
Security Operations Administrator Smith—refused to recommend or
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grant protective custody. ER 325-19 ¶¶ 37–38; 295-48; 295-55. Instead,
Fierro was transferred to the Lewis-Morey Unit in April 2012. ER 325-
21 ¶ 42.
3. Defendants deny Fierro’s third request for protective custody after another inmate told him that he was not safe in general population.
Upon his arrival at the Lewis-Morey Unit, inmate “Flaco” gave
Fierro a note telling Fierro to “leave the yard or get stuck.” ER 325-21 ¶
42. Fierro learned from another inmate that Fierro’s problem with the
Border Brothers could not be resolved and that Fierro “had to leave the
yard.” Id. (Fierro would later learn precisely why: one of the Border
Brothers’ leaders, Raul “R” Mondragon, had ordered a hit on Fierro and
given inmates the “green light” to stab Fierro. Id.) Fearing for his life,
Fierro requested protective custody. Id.
This time, Fierro’s plea did not fall on deaf ears: Deputy Warden
Schuster, relying on the investigative summary of an unidentified
correctional officer, recommended protective custody for Fierro. ER 295-
22, 65, 70. Schuster so recommended because: (1) Fierro reported that
he received a note saying “leave the yard or get stuck”; (2) Fierro
reported that he was given this note “because of” his fight with the
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“head of the Border Brothers at Cimarron”; (3) Fierro reported that he
was assaulted by inmates who pushed their way into his cell; and (4)
Fierro “ha[d] extensive bodily injury from that assault.” ER 295-70.
Deputy Warden Schuster explained the rationale for his
recommendation: (1) it was Fierro’s “third request for protective
custody”; (2) Fierro reported that he could not “defend himself” in
general population “due to his medical issues”; (3) Fierro reported that
his “issues” were “related” to an “STG”—a security threat group—due to
a fight with a named “Border Brothers suspect” who could not be
housed with Fierro according to the prison’s records. Id.
Notwithstanding Schuster’s recommendation, Appellant Coffey
(the Protective Custody Administrator) denied protective custody. ER
295-69. Appellant Smith claims that he did not receive Fierro’s appeal,
so Fierro’s appeal of the protective custody decision was effectively
denied. ER 295-63, 295-22 ¶ 27. Fierro was instead transferred to the
Yuma-Dakota Unit in May 2012. ER 295-22.
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4. Defendants deny Fierro’s fourth request for protective custody after he received a threat from two inmates who told him that he was on the “list.”
Upon arrival at the Yuma-Dakota Unit, Fierro was approached by
two inmates, Castillo and Hernandez, who told him “you have to go or
else.” ER 325-25 ¶ 51. Later that day, Fierro saw Hernandez pass
Castillo what looked to be a piece of wire about four to seven inches
long, and overheard Castillo say “wait for later to beat [Fierro] up.” Id.
at ¶¶ 51–52; ER 325-26 ¶ 55. Fierro requested protective custody, but
three Defendants (Deputy Warden Sanders, Protective Custody
Administrator Coffey, and Security Operations Administrator Smith)
refused to recommend or grant protective custody. ER 325-27 ¶¶ 58–60.
Fierro was instead transferred to the Winslow-Kaibab Unit in June
2012. ER 325-28 ¶ 61.
5. Defendants deny Fierro’s fifth request for protective custody after he received a note from The Raza offering protection from the Border Brothers.
Once at the Winslow-Kaibab Unit, Fierro received a note stating,
“Hey Homie I know about your [problem], now if you wanna [sic] fix
your problem you’re going to have to run with the Raza & put in some
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work by stabbing and killing whoever we tell you to.” ER 325-28 ¶ 61;
295-9. Fierro requested protective custody, but three Defendants—
Deputy Warden Pruett, Protective Custody Administrator Coffey, and
Security Operations Administrator Smith—refused to recommend or
grant protective custody. ER 325-28–29 ¶¶ 62–65; 295-24 ¶ 39, 295-97.
Fierro was transferred to “maximum custody” in the Florence-Central
Unit after having no “more placement options available.” ER 325-30 ¶
66.
6. Defendants deny Fierro’s sixth request for protective custody after he was threatened by another inmate.
While at the Florence-Central Unit, Fierro learned that Raul “R”
Mondragon had given the “green light” to kill him. ER 325-30 ¶ 67. In
June 2013, inmate Jesus Rivera-Castro wrote a letter to prison staff
stating as much. ER 325-117. In September 2013, prison officials
transferred Fierro back to the Tucson-Cimarron Unit—the same unit
where he had previously been beaten by Molina-Gastelum, Lopez,
Nunez, and Valenzuela. ER 325-30 at ¶ 69.
Upon Fierro’s arrival to the Tucson-Cimarron Unit, an inmate told
Fierro that the inmates “knew about [Fierro’s] issues and previous
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[protective custody] requests,” and that Fierro had to “leave the yard.”
ER 325-31 ¶ 71. Fierro requested protective custody, but three
Defendants—Deputy Warden Forester, Protective Custody
Administrator Coffey, and Security Operations Administrator Smith—
refused to recommend or grant protective custody. ER 295-115; 295-26 ¶
47; 325-31 ¶70. Fierro was transferred back to the Lewis-Morey Unit in
December 2013—the same unit from which Fierro was removed after
making his third protective custody request. ER 325-33 ¶ 75.
7. Two Border Brothers attack Fierro within fifteen minutes of Fierro’s arrival to the Lewis-Morey Unit and he again requests protective custody. This time, he receives protective custody.
Upon Fierro’s arrival at the Lewis-Morey Unit, two Border
Brothers assaulted Fierro in a general population prison yard, the
purview within which the Border Brothers’ assaults and threats against
Fierro were, by now, a familiar occurrence. ER 325-33 ¶ 75. Fierro
requested protective custody for the seventh time. Id. For the second
time, Deputy Warden Schuster recommended protective custody,
finding that: (1) Fierro was only at the Morey Unit for fifteen minutes
before being assaulted; (2) “this could be STG related”; (3) this was
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Fierro’s seventh protective custody request; and (4) “[a]ll of his requests
have been related to the STG Border Brothers.” ER 295-134–35.
Appellant Coffey, apparently unsatisfied with Schuster’s
recommendation, requested further proof that Fierro’s issue was related
to the Border Brothers. See ER 295-147 (“Looks to me like you are
recommending P.C. because his issue could be STG related and he has
requested 7 times and he was assaulted by two inmates within 15
min[utes] of hitting the yard. Please have SSU re-investigate this and
provide documentation which supports their findings.”) (emphasis in
original). Further, Appellant Coffey also noted in an e-mail that there is
no documentation “which indicates Fierro’s statements have been
checked out and either confirmed or not confirmed. There is no
indication his claim of having a hit on him was investigated.” ER 295-
147. No further documentation was available, but Appellant Coffey
nonetheless finally approved protective custody. ER 295-147; ER 295-
135.
D. Fierro files this action pro se against the officers who refused his requests for protective custody.
Fierro alleged four counts against multiple prison officials,
including the six appellants here. ER 46-4. In Count One, Fierro alleged
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violations of the Eighth Amendment due to the prison officials’ failure
to grant protective custody. Id. at 1–12. In Counts Two through Four,
Fierro alleged that he was denied adequate medical care. Id. at 13–30.
The latter three claims are not at issue in this appeal, as to which the
court granted summary judgment after concluding that prison medical
staff (none of the appellants here) did not act with deliberate
indifference because the medical treatment Fierro complained about
was not shown to be “unacceptable,” and that there was insufficient
evidence to ground liability against one of the prison medical officials.
ER 421-29–48, 436-1.
E. Defendants move for summary judgment, arguing that they responded reasonably to the risk of harm and that they did not violate clearly established law because they followed policy.
Defendants, along with codefendant prison officials Deputy
Warden McCarville and Deputy Warden Schuster,3 moved for summary
judgment and submitted a declaration by Appellant Smith, Fierro’s
protective custody file, and Department Order 805—the protective
custody policy. SER 23–40; ER 295-1–172.
3 The district court granted summary judgment as to codefendants Schuster and McCarville. See ER 421-48.
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On summary judgment, the prison officials contended that they
were not deliberately indifferent because they responded reasonably to
any risk of harm by granting Fierro alternative placement in general
population. SER 34–37. Defendants further argued that they did not
violate clearly established law because they followed the protective
custody policy and cited an Eighth Circuit case, Yellow Horse v.
Pennington Cty., 225 F.3d 923, 927 (8th Cir. 2000), in support of their
theory. SER 37–40. Defendants also claimed that “no court” had held
that prison officials violate the Eighth Amendment when they
investigate an inmate’s protective custody request and follow prison
policy in making the reasonable decision to deny protective custody to
the inmate. See SER 39.
F. Fierro opposes summary judgment.
Fierro opposed the motion pro se, contending that failure to
protect prisoners from gangs amounts to deliberate indifference, that
his right to be free from violence at the hands of other inmates was
clearly established, and that the prison officials were not entitled to
qualified immunity because they refused to grant protective custody.
SER 19–22 (citing Walsh v. Mellas, 837 F.2d 789, 797–98 (7th Cir. 1988)
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(holding that district court had sufficient evidence to find that officials
violated Eighth Amendment right of inmate targeted by gangs)). Fierro
also argued that no prison policy could prevent Defendants’ liability
here because they did not in fact follow the protective custody policy.
SER 22.
In support of his opposition, Fierro marshaled a handwritten
statement of facts and his own declaration, a declaration of a witness to
the March 11, 2012 beating, medical records produced while he was
being treated for his post-altercation injuries, and Arizona Republic
news articles concerning inmate assaults and homicides in the Arizona
prison system. ER 325 3–36, 39–45, 69–71, 117, 121. Fierro also
proffered letters he wrote to Appellant Smith in April 2012, 325-96–97,
and inmate Jesus Rivera-Castro’s letter to prison staff confirming that
Fierro had a ‘hit’ placed on him by Mondragon. ER 325-117.
In his submissions, Fierro disputed the prison officials’ account of
the events, stating, among other things, that: (1) Defendants did not
follow the protective custody policy, SER 22; (2) the claims of being
assaulted at Tucson-Cimarron were substantiated, as made apparent by
the declaration of Alan Werner, ER 330-6 ¶ 17; (3) the note from the
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Lewis-Morey Unit telling him to “leave the yard” was not found because
it had been taken by prison staff, ER 330-8 ¶ 25; (4) prison staff did not
review his court case to corroborate his claim that Molina-Gastelum
thought he was a “snitch,” 330-9, ¶ 30; (6) the Do Not House With
(“DNHW”) list was an unreasonable means of protecting him, as
demonstrated by the fact that he was continuously threatened and
assaulted by the Border Brothers, ER 330-10–11 ¶¶ 33, 35; (7) there
were no alternative general population placements in which he could be
housed, id.; and (8) he was in imminent danger of getting physically
assaulted. Id.
G. Defendants reply to Fierro’s opposition.
Defendants filed a reply brief in which they contended that: (1)
Fierro did not dispute that Department Order 805 governed the
protective custody process or that protective custody and alternative
placement were options for inmates with legitimate protection needs,
SER 3–4; (2) Fierro did not dispute that Defendants followed
Department Order 805, id.; (3) Defendants responded reasonably by
investigating and choosing alternative means to protect Fierro, id. at 5;
(4) Fierro had offered no evidence to show that Defendants failed to
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investigate, id. at 6; and (5) the evidence in this case involved only a
dispute over the existence of arguably superior alternatives. Id.
Defendants also argued that no court has held prison officials to
be deliberately indifferent when they follow policy, evaluate the need for
protective custody, and take reasonable action to ensure an inmate’s
safety. SER 4–6. They also argued that no court has held prison officials
liable for making a reasonable alternative housing decision upon an
inmate’s request for protective custody. SER 6–7.
H. The district court denies summary judgment, finding triable issues of material fact and a violation of clearly established Eighth Amendment law under Fierro’s version of the events.
The district court found triable issues as to each element of
Fierro’s Eighth Amendment claims. ER 421-19–25. The district court
first found a triable issue as to whether Fierro faced a substantial risk
of harm after noting that Fierro had been labeled a snitch and had been
assaulted by the Border Brothers. ER 421-19–20. Next, the district
court found a triable issue as to the prison officials’ awareness of the
serious harm Fierro faced after detailing the multiple reports Fierro
made to the prison officials about the Border Brothers. ER 421-21–23.
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Third, the district court found a triable issue as to the
reasonableness of Defendants’ responses to Fierro’s protective custody
requests, given the multiple times Fierro requested protective custody,
Deputy Warden Schuster’s recommendation to grant protective custody,
and Defendants’ unexplained reason for returning Fierro to the Tucson-
Cimarron and Lewis-Morey Units even after Fierro had already been
removed from those very same units as a result of his prior protective
custody requests. ER 421-25.
The district court then turned its attention to the “clearly
established” prong of the qualified immunity analysis. ER 421-25. The
district court began its analysis by construing the facts in Fierro’s favor
and reiterating that triable issues of fact existed as to Fierro’s Eighth
Amendment claim and whether the prison officials’ conduct violated the
Constitution. ER 421-26. The district court “therefore” reasoned that
“[q]ualified immunity” “turn[ed]” on the clearly established prong of the
qualified immunity analysis. See id.
Under the “second step” of the qualified immunity inquiry, the
district court held that “the law on failure-to-protect under the Eighth
Amendment was clearly established at the time [Fierro’s] claim arose in
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2011” and that “prison officials have a duty to protect a prisoner from
violence at the hands of other prisoners.” Id. The district court also
rejected as inapposite the Eighth Circuit case proffered by the prison
officials (Yellow Horse, 225 F.3d at 927) and then denied summary
judgment on qualified immunity grounds. ER 421-27–28.
I. The district court denies Defendants leave to file a second motion for summary judgment
Defendants sought leave from the court to file a second motion for
summary judgment. ER 436-1. The district court denied that request,
concluding that no previously unavailable evidence was introduced so
as to warrant an expanded factual record. Id. at 5, 7.
In denying the motion, the district court also reiterated its bases
in the original order for finding a triable issue as to the reasonableness
of the prison officials’ responses to the risk of harm Fierro faced (ER
436-3), explaining that the risk of harm Fierro complained about
throughout the protective custody process was about remaining in the
general population, that Defendants “did make the decisions to deny”
Fierro’s protective custody requests, and that, even if Defendants were
not in control of deciding where Fierro would be sent, the question
remained “whether it was reasonable for [the prison officials] to deny
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[Fierro’s protective custody] requests, which meant he remained in the
general population.” Id. at 6.
J. This interlocutory appeal follows.
Six defendants—Ochoa, Pruett, Forester, Sanders, Smith, and
Coffey—appealed the district court order denying the qualified
immunity defense to Fierro’s Eighth Amendment claims. ER 440-1–2.
SUMMARY OF ARGUMENT
A prison official is not entitled to qualified immunity when (1) the
official’s conduct violated a constitutional right, and (2) that right was
clearly established at the time of the violation. See Pearson v. Callahan,
555 U.S. 223, 232 (2009). Such an official violates an inmate’s Eighth
Amendment right to be free from violence at the hands of other inmates
when the official knows an inmate faces a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to
abate it. Castro v. Cty. of L.A., 833 F.3d 1060, 1067 (9th Cir. 2016).
The district court here, after meticulously detailing the evidence
in the record, declined to deprive Fierro of his day in court, finding
triable disputes of fact that a reasonable jury could consider in
concluding that Defendants unreasonably responded to—and thus
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disregarded—the serious risk of harm Fierro faced. ER 421-20, 23, 25.
The resulting order denying summary judgment should be affirmed.
First, Defendants do not dispute that Fierro, an inmate in his 50s
suffering from various medical ailments, faced an objectively serious
risk of harm. Nor could they: the evidence showed that members of a
pervasive prison gang, believing Fierro was a snitch, targeted and
threatened Fierro and required him to seek the aid of prison medical
staff after the gang members viciously assaulted Fierro four different
times, one of which involved a three-on-one stomping. ER 325 ¶¶ 12, 26,
29, 75; 295-34; 295-58; 295-70; 325-71; 325-121.
Second, although Defendants now claim that they did not draw
the inference that Fierro’s safety was at risk, a reasonable jury could
find otherwise. Fierro repeatedly reported the prison gangs’ assaults
and threats in seeking protective custody. And, as Defendants concede,
“each” of them (including the four Defendants who were deputy
wardens at distinct prison facilities) “independently reviewed all of the
available information”—including Fierro’s protective custody
“history”—before refusing to recommend or grant protective custody.
See Defendants’ Opening Br. 36–37; SER 3; ER 295-65, 295-87, 295-146.
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Third, anything short of placing Fierro in protective custody was
unreasonable under the circumstances here. A reasonable juror could
find on this record that Defendants’ responses to the gang-related
threats and assaults against Fierro (moving Fierro to the general
population of another prison facility, a response that twice backfired
when Fierro was actually returned to prisons from which he had
already been removed) was wholly inadequate—and therefore
unreasonable—because that course of action failed to remove Fierro
from the general prison population (the domain where the Border
Brothers’ assaults and threats against Fierro thrived). Moreover,
Defendants have come forward with no evidence as to why it was not
penologically feasible to place Fierro in protective custody, the only
place where he would be out of the Border Brothers’ deadly reach.
Thus, viewing the evidence in the light most favorable to Fierro,
as the district court and this Court must, the district court correctly
concluded that Defendants’ alleged conduct violated Fierro’s clearly
established right to be free from violence at the hands of other inmates
and that Defendants were therefore not entitled to qualified immunity.
See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1048 (9th Cir.
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2002). Indeed, an inmate’s right to be free from violence at the hands of
other inmates has long been clearly established. See Castro, 833 F.3d at
1067. Further, at the time each Appellant refused to grant Fierro
protective custody, clearly established law fairly warned Defendants
that prison officials violate the Eighth Amendment when they know of
an ongoing risk to an inmate from a prison gang with a substantial
presence in the facility and respond unreasonably to that risk by
making a recommendation or decision that ultimately leaves the inmate
in harm’s way. See, e.g., Howard v. Waide, 534 F.3d 1227, 1242 (10th
Cir. 2008); Rodriguez v. Sec’y for Dep't of Corr., 508 F.3d 611, 623 (11th
Cir. 2007); Hamilton v. Leavy, 117 F.3d 742, 748 (3d Cir. 1997).
Accordingly, this Court should affirm the district court order denying
summary judgment on qualified immunity grounds.
STANDARD OF REVIEW
A decision “denying summary judgment on the ground of
qualified immunity” is reviewed de novo. Bingham v. City of Manhattan
Beach, 341 F.3d 939, 945 (9th Cir. 2003); see also See Elder v. Holloway,
510 U.S. 510, 516 (1994). Whether federal rights asserted by a plaintiff
were clearly established at the time of the alleged violation is a question
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of law that this Court also reviews de novo. Martinez v. Stanford, 323
F.3d 1178, 1183 (9th Cir. 2003). A “challenge to [this Court’s] appellate
jurisdiction over an interlocutory appeal” is similarly reviewed de novo.
Pauluk, 836 F.3d at 1120.
On summary judgment, courts must resolve any factual
disputes—and must draw all reasonable inferences—“in favor of the
plaintiff and decide the legal question as to whether the official’s
alleged conduct violated clearly established law.” See Cunningham v.
City of Wenatchee, 345 F.3d 802, 807 (9th Cir. 2003); Karl, 678 F.3d at
1068.
ARGUMENT
This Court Should Affirm the Denial of Summary I.Judgment on Qualified Immunity and Allow Fierro’s Eighth Amendment Claim to Proceed.
A. Overview: qualified immunity standard.
This Court applies “a two-part analysis in qualified immunity
cases.” Pauluk, 836 F.3d at 1121. “First, a court must determine
whether—resolving all disputes of fact and credibility in favor of the
party asserting the injury—the facts adduced at summary judgment
show that the officer’s conduct violated a constitutional right.” Id.
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Second, “if the court determines that the conduct did violate a
constitutional right, [the] second prong requires the court to determine
whether, at the time of the violation, the constitutional right was
‘clearly established.’” Id.
To state a section 1983 claim against prison officials for failure to
protect, an inmate must establish: (1) that he was “incarcerated under
conditions posing a substantial risk of serious harm” and (2) that the
prison officials acted with “deliberate indifference” to his health or
safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). To show
deliberate indifference, the prison official must know of and disregard
an excessive risk to inmate health or safety. See Castro, 833 F.3d at
1068; see also Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062,
1078 (9th Cir. 2013) (deliberate-indifference inquiry is “fact-intensive
and typically should not be resolved at the summary judgment stage”).
A prison official disregards a substantial risk of harm “by failing to take
reasonable measures to abate it.” Castro, 833 F.3d at 1067.
To evaluate whether the right was clearly established, courts
conduct “a two-part inquiry”: “(1) Was the law governing the state
official’s conduct clearly established? (2) Under that law could a
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reasonable state official have believed his conduct was lawful?” Jeffers
v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001).
B. The limits of interlocutory review.
As a general matter, this Court has jurisdiction to hear appeals
only from “final decisions.” 28 U.S.C. § 1291; Johnson v. Jones, 515 U.S.
304, 309 (1995). The “Supreme Court has created an exception to the
final judgment rule for certain interlocutory appeals when the district
court has denied a motion for summary judgment based on qualified
immunity.” Pauluk, 836 F.3d at 1120–21. Such orders are “immediately
appealable” under the collateral-order doctrine so long as the defendant
presents this Court with a purely legal issue that does not require this
Court to consider the correctness of the plaintiff’s version of the facts.
See Cunningham, 345 F.3d at 808 (orders denying qualified immunity
are “collateral” because they “are said to fall within ‘that small class
which finally determine claims of right separable from, and collateral
to, rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated’”).
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Accordingly, this Court has “jurisdiction over an interlocutory
appeal from the denial of qualified immunity where the appeal focuses
on whether the defendants violated a clearly established law given the
undisputed facts,” but this Court does “not have jurisdiction over an
interlocutory appeal that focuses on whether there is a genuine dispute
about the underlying facts.” Knox, 124 F.3d at 1107. Where an
appellant raises both of these issues and argues them in the
“alternative,” this Court may only “decide whether there is a material
dispute about the correctional officers’ conduct, and if so, assume those
facts in the [plaintiff’s] favor in order to determine whether the denial of
qualified immunity was appropriate.” See Estate of Ford, 301 F.3d at
1048; see also Pauluk, 836 F.3d at 1121.
Thus, to the extent the prison officials seek to interject doubt into
the factual bases for Fierro’s claims, this Court lacks jurisdiction to
assess those arguments. For example, Defendants contend that the
district court “improperly assumed facts not in the record” as to
whether Defendants were “responsible for”—i.e., caused—Fierro’s
transfer “to the prison where he was harmed.” See Defendants’ Opening
Br. 33–34. Defendants also contend that the district court erred in
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finding a triable issue of fact as to whether they were aware of the harm
Fierro faced, arguing that there “simply is no evidence that any of them
drew the inference that Fierro faced a substantial risk of serious harm
in general population.” See Defendants’ Opening Br. 35–36.
This Court lacks jurisdiction on interlocutory review to rule on
such questions. In other words, as the Tenth Circuit has explained,
“whether the district court erred in denying summary judgment on the
grounds that [plaintiff] ‘did not allege, or submit any evidence, that [the
defendant] was responsible for the delay in his transfer’ and that
[plaintiff] ‘failed to submit any evidence that the delay in surgery
caused any harm’” present “the kind of ‘evidence sufficiency’ issues”
that the court cannot “address” on an interlocutory appeal. Garrett v.
Stratman, 254 F.3d 946, 954 (10th Cir. 2001).
Defendants also seek to inject evidence sufficiency concerns into
the “clearly established” prong of the two-part qualified immunity
inquiry. For example, they claim that they reasonably delayed placing
Fierro in protective custody, but did so “once” there was a “credible”
threat to his safety. See Defendants’ Opening Br. 35, 44. But “all
disputes of fact and credibility” must be drawn in Fierro’s favor at this
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stage, see Pauluk, 836 F.3d at 1121, and this Court has jurisdiction to
answer the “clearly established” inquiry only if it assumes material
disputes of fact in Fierro’s favor. See Estate of Ford, 301 F.3d at 1048;
see also Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996) (“While
[defendant] proffered his own view that [the plaintiff’s] condition was
not sufficiently serious . . . a jury need not credit [defendant’s]
testimony as to his observations or his attitude”).
We now explain why—gauged under the proper review standards
and within the proper limits of interlocutory review—Defendants knew
that Fierro faced a serious risk of harm from the Border Brothers, and
acted unreasonably by refusing to grant protective custody. We also
show that clearly established law at the time fairly warned Defendants
that they were acting unlawfully.
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C. Defendants’ failure to grant protective custody was unreasonable in light of the serious risk of harm Fierro faced from not being removed from the Border Brothers gang, and violated the Eighth Amendment.
1. Defendants do not dispute that Fierro faced an objectively serious risk of harm from being targeted by the Border Brothers Gang.
Courts have held that the “risk of assault is a serious problem of
substantial dimensions” for “prisoners targeted by gangs” and for
prisoners labeled “snitches.” 4 See Lewis v. Richards, 107 F.3d 549, 553
(7th Cir. 1997); Reece v. Groose, 60 F.3d 487, 488 (8th Cir. 1995)
(reputation as a snitch places inmate “at substantial risk of injury at
[other inmates’] hands”); Valandingham v. Bojorquez, 866 F.2d 1135,
1138–39 (9th Cir. 1989) (whether prison officials called inmate a
“snitch” was material to plaintiff’s Eight Amendment “right to be
protected from violence while in custody”); Walsh, 837 F.2d at 798
4 Because Defendants do not challenge Fierro’s ability to establish the objective component of his Eighth Amendment claim, this Court may proceed to analyze Defendants’ awareness of the serious risk of harm and the reasonableness of their responses to that risk. See Defendants’ Opening Br. 26–27, 33–38; Brown v. N. Carolina Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (proceeding to analyze the subjective component of plaintiff’s Eighth Amendment claims where, as here, the inmate suffered significant physical injuries after being assaulted and the objective component was uncontested).
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(prisoner targeted by gangs); David v. Hill, 401 F. Supp. 2d 749, 756–57
(S.D. Tex. 2005) (collecting cases).
Here, from January 2011 to December 2013, the Border Brothers,
a recognized security threat group or “gang” that operates within the
Arizona Department of Corrections, assaulted Fierro four times—
inflicting physical injuries that required Fierro to seek medical
attention. ER 325 ¶¶ 12, 26, 29, 75; 295-34; 295-58; 295-70; 325-71; 325-
121.5
Fierro’s problems with the Border Brothers began in January
2011, when gang members perceived a prison official to have identified
Fierro as a snitch. See ER 325-8 ¶ 11; Valandingham, 866 F.2d at
1138–39. Officer Perry told an inmate named “Rock” (who was a
Mexican Mafia member) as well as “several” other inmates to “keep an
eye on” Fierro. ER 325-8–9 ¶¶ 11–12. Rock and other inmates inferred
from this statement that Fierro “snitch[ed]” on the Mexican Mafia. Id.
The next day, Fierro and Nieto (who was a Border Brothers gang
5 Notably, one of the Arizona Republic news articles in the record, which reported on the deadliness of Arizona state prisons between 2009 and 2011, largely foreshadowed the prison gang assaults and threats that Fierro would come to endure between 2011 and 2013. See ER 325-44.
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member) fought after Nieto called Fierro a “rat” and “snitch” and
“started pushing . . . and shoving” Fierro.6 Id. Fierro broke his hand
during the fight, and prison staff documented the medical treatment
Fierro received. ER 295-34.
Fierro’s reputation as a snitch heightened in early March 2012,
when Molina-Gastelum, the Border Brothers’ leader and Fierro’s
cellmate, searched Fierro’s belongings and found Fierro’s court
documents, which indicated that Fierro “claimed others were present
and fired . . . shots at” two individuals. ER 325-13 ¶ 25; 325-67. Based
on this, a jury could reasonably infer that Molina-Gastelum believed
Fierro had implicated others in crimes and was therefore a “snitch.”
A few days later, on March 11, Fierro was twice assaulted by the
Border Brothers. First, Molina-Gastelum attempted to pour hot water
on Fierro’s face, prompting a fight between the two. ER 325-14 ¶ 26.
Second, shortly after the Fierro-Molina-Gastelum fight, Molina-
Gastelum instructed fellow Border Brothers Lopez and Nunez to “take
care” of Fierro “because [he had requested protective custody] and [was]
6 The relationship between the Mexican Mafia and the Borders Brothers is unclear from the record evidence presented on summary judgment.
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a ‘snitch.’” ER 325-14–15 ¶ 26. Border Brothers Valenzuela, Lopez, and
Nunez carried out that order—assaulting Fierro after Officer Molera
opened Fierro’s cell door at the gang members’ request.7 After the three-
on-one beating, prison staff documented a 3.5” laceration on Fierro’s
forehead and medical staff saw Fierro for an “assault” at the request of
“Sgt. K.” ER 295-58; 325-71. Finally, within 15 minutes of Fierro’s
arrival at the Lewis-Morey Unit—the prison institution from which
Fierro had been removed after making his third request for protective
custody, and to which he was nonetheless transferred after making his
sixth request for protective custody—two members of the Border
Brothers assaulted Fierro a fourth time in December 2013. ER 325-33 ¶
75; 295 ¶¶ 22, 29, 51. Afterward, medical staff noted numerous physical
injuries to Fierro’s head, torso, arms, and legs. ER 325-121.
Additional record evidence also shows that the Border Brothers
targeted Fierro after January 2011: (1) in April 2012, a Border Brothers
inmate sent Fierro a note saying “leave the yard or get stuck,” ER 325-
21 ¶ 42; (2) a fellow inmate told Fierro—as well as prison staff—that
7 Alan Werner’s declaration corroborates Fierro’s account of the events on March 11, 2012. ER 325-69–70.
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one of the Border Brothers’ leaders instructed fellow inmates that they
had the “green light” to stab Fierro, ER 325 ¶¶ 42, 67; ER 325-117; and
(3) in May 2012, two inmates told Fierro that he had to “leave the yard”
and that Fierro was on the “list.” ER 325-25 ¶ 51.
In light of the evidence showing that a prison official labeled
Fierro a snitch, that Fierro had such a reputation among fellow
inmates, and that the Border Brothers targeted and assaulted Fierro
because they believed he was a snitch, a reasonable jury could find that
Fierro met the objective component of his Eighth Amendment claims.
See Brown, 612 F.3d at 723; Lewis, 107 F.3d at 553; Reece, 60 F.3d at
488; Valandingham, 866 F.2d at 1138–39.
2. Defendants knew Fierro faced a substantial risk of harm and failed to take reasonable measures to remove Fierro from the Border Brothers Gang.
a. Each Appellant actually knew about the substantial risk of harm Fierro faced.
Defendants acknowledge that “each” of them “independently
reviewed all of the available information”—including Fierro’s protective
custody history. Defendants’ Opening Br. 36–37; see also SER 3
(admission also made in motion for summary judgment). Record
evidence shows as much, as well. See, e.g., ER 295-146 (seventh
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protective custody request includes “[d]ate and summary of prior
requests”); 295-65 (third protective custody request: “This is the third
request for protection”); 295-87 (fourth request for protective custody:
“Inmates [sic] 3rd request previous request [sic] were for the same
reason”; “he claims it started when he fought a Border Brother at
Cimarron”); 295-103 (fifth protective custody request: recounting claims
Fierro made “[i]n a prior 805 [protective custody request]” and saying
that Fierro “is manipulating the 805 process . . . .”); 295-123 (sixth
protective custody request: “This is the inmate’s SIXTH protection
review. The inmate’s protection history is as follows . . . .”).
Where, as here, a “plaintiff presents evidence showing that a
substantial risk of inmate attacks was ‘longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus ‘must have known’
about it, then . . . a trier of fact [may] find that the defendant-official
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had actual knowledge of the risk,” and summary judgment is improper.8
Farmer, 511 U.S. at 842–43.
Rodriguez aptly shows why a reasonable juror here could find that
Defendants actually knew about the substantial risk of harm Fierro
faced. 508 F.3d at 621. In that case, the Eleventh Circuit held that a
reasonable jury could find that the defendant had actual knowledge of
the risk of harm where the plaintiff told the defendant “(1) that he was
a former Latin King [gang member] who decided to renounce his
membership; (2) that members of the Latin Kings had threatened to kill
him when he returned to the compound in retaliation for his
renunciation; (3) that the compound at [the prison facility] was heavily
populated with Latin Kings; and (4) that, in order to prevent an attempt
on his life, he needed either to be transferred to another institution or to
be placed in protective custody.” Id.; see also Case v. Ahitow, 301 F.3d
605, 606–07 (7th Cir. 2002) (holding that summary judgment for
defendant was precluded where plaintiff notified prison staff about
8 A “prison official’s knowledge is a question of fact, ‘subject to demonstration in the usual ways, including inference from circumstantial evidence.’” Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). On summary judgment, these inferences are to be drawn in the light most favorable to the nonmoving party. Karl, 678 F.3d at 1068.
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threats from another prisoner). Below, we analyze the evidence in the
record defendant by defendant.
Ochoa
Deputy Warden Ochoa reviewed Fierro’s second request for
protective custody, which was made after Fierro suffered the two
assaults on March 11, 2012. ER 295-5 ¶¶ 16, 18; 325-19 ¶ 38. Fierro
asserts in his declaration that “Ochoa recommend[ed]” alternative
placement in general population “knowing very well that [his] issue”
related to the Border Brothers, a security threat group. ER 325-19 ¶ 38.
Indeed, Fierro’s protective custody file included evidence of the injuries
that he suffered after the January 2011 altercation with Nieto. ER 295-
34, 295-40.
Ochoa also noted on March 13 that Fierro’s cellmate, Molina-
Gastelum, “told others that [Fierro] had snitched on the Mexican
Mafia,” and that other inmates “assaulted [Fierro] and took his
paperwork,” a slang term for court documents. ER 325-18–19 ¶¶ 36;
295-55. Further, Ochoa “added” Molina-Gastelum, “an influential
member of the” Border Brothers “prison gang,” to the list of inmates
with whom Fierro could not be housed. ER 325-18 ¶ 35; 295-56; 295-57.
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A reasonable jury could infer that Ochoa actually knew about the risk
to Fierro because she recommended alternative general population
placement—thereby showing she believed some protection to be
necessary—rather than denying his request for relief altogether.9 ER
295-55; 295-155 ¶ 1.5.1 (portion of prison policy permitting deputy
warden to make recommendation or deny request altogether). In light of
the foregoing, a reasonable jury could find that Ochoa knew that Fierro
faced a substantial risk of harm.
Sanders, Pruett, Forester, Coffey, & Smith
Each of the remaining Defendants reviewed Fierro’s protective
custody file after Ochoa; a reasonable jury could thus find that they
knew about the harm Fierro faced, as well. Further, each of the
remaining Defendants reviewed one of Fierro’s requests for protective
9 Likewise, a jury could also reasonably infer that Defendants Sanders, Pruett, Forester, and Coffey were aware of the substantial risk of harm Fierro faced because they also thought Fierro was at the very least entitled to alternative placement. ER 295-8 ¶ 30; 295-9 ¶ 37; 295-10 ¶ 45; 295 ¶¶ 18, 25, 33, 40, 48, 54. A reasonable jury could infer that if Defendants truly disbelieved Fierro, they would have denied Fierro’s request altogether. See ER 295-70; 295-155.
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custody after Deputy Warden Schuster recommended that Fierro be
placed in protective custody.10 ER 295-67.
Deputy Warden Schuster, relying on the investigative summary of
an unidentified correctional officer, recommended that Fierro be placed
in protective custody after Fierro made his third request for protective
custody. See ER 295-22–25; 295-65; 295-70; 421-10. Deputy Warden
Schuster so recommended because (1) Fierro reported that he received a
note saying “leave the yard or get stuck”; (2) Fierro reported that he
was given this note “because of” his fight with the “head of the Border
Brothers at Cimarron”; (3) Fierro reported that he was assaulted by
10 Deputy Warden Sanders reviewed Fierro’s fourth request for protective custody, which Fierro made on May 8, 2012, ER 295-8 ¶ 30; 325-26 ¶ 54; Deputy Warden Pruett reviewed Fierro’s fifth request for protective custody, which Fierro made on June 18, 2012, ER 295-9 ¶ 37; Deputy Warden Forester reviewed Fierro’s sixth request for protective custody, which Fierro made on September 17, 2013. ER 295-10 ¶ 45; Protective Custody Administrator Coffey reviewed Fierro’s third and subsequent requests for protective custody, ER 295 ¶¶ 18, 25, 33, 40, 48, 54; and Security Operations Administrator Smith reviewed Fierro’s protective custody appeals after his first, second, fourth, fifth, and sixth requests for protective custody were denied. See ER 325 ¶ 19; 295 ¶¶ 20, 35, 42, 50; 421-10–11.
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inmates who pushed their way into his cell; and (4) Fierro “ha[d]
extensive bodily injury from this assault.” 11 ER 295-70; 295-66.
Deputy Warden Schuster explained his rationale for
recommending protective custody: (1) it was Fierro’s “third request for
protection”; (2) Fierro reported that he could not “defend himself” in
general population “due to his medical issues”; (3) Fierro reported that
his “issues [were] STG related due to” a fight with a Border Brothers
suspect who could not be housed with Fierro and who appeared as a
“Border Brother suspect” in the prison’s records. See ER 295-70. Deputy
Warden Schuster’s recommendation, which adopted the investigative
summary of another correctional officer, constitutes highly probative
“evidence showing that a substantial risk of inmate attacks was
‘longstanding, pervasive, well-documented, [and] expressly noted by
prison officials in the past.” See Farmer, 511 U.S. at 842–43.
11 Although the names of the inmates identified in Schuster’s recommendation have been redacted in the excerpts of record, a reasonable jury could infer that Schuster was referring to the incidents relating to March 11, 2012—the date when Border Brothers’ leader Molina-Gastelum assaulted Fierro and then instructed other Border Brothers to do the same. See supra Pt. I.C.1.
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Additionally, Defendants expressly represent that they
“independently reviewed all of the available information.” Defendants’
Opening Br. 36–37; see also SER 3 (admission also made in motion for
summary judgment); ER 295-65, 87, 146, 103, 123. Based on this
admission, as well as the record evidence corroborating that admission,
a reasonable jury could find that Defendants Sanders, Pruett, Forester,
Coffey, and Smith “must have known” about Schuster’s
recommendation and the risk of harm that Fierro faced. See Hamilton,
117 F.3d at 747–48 (finding “sufficient circumstantial evidence upon
which a factfinder could conclude that [the defendant] ‘must have
known’ of the risk to [the inmate’s] safety” where she was “made aware
of” this risk “when she reviewed” a “recommendation to place [the
inmate] in protective custody”).
Other record evidence would further aid a reasonable juror in
finding that Sanders, Pruett, Forester, Coffey, and Smith were aware of
the risk of harm to Fierro, as well. Security Operations Administrator
Smith reviewed at least five appeals of the protective-custody denials,
in which Fierro meticulously detailed his troubles with the Border
Brothers. ER 325-12 ¶ 19 (19)–(20); 295-48, 49, 63, 80, 81 98, 100, 115,
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116. Protective Custody Administrator Coffey also reviewed at least five
of Fierro’s protective custody requests. ER 325 ¶¶ 37, 38; 295-23, 24, 26,
27, 56,134. Fierro also alerted Deputy Warden Forester to the threats
from the Border Brothers by detailing the assaults by Molina-Gastelum,
Valenzuela, Lopez, and Nunez. ER 325-31 ¶¶ 70–73; 295-10 ¶ 45.
Deputy Warden Pruett also was aware of Fierro’s protective custody
requests, but disbelieved Fierro and accused him of manipulating the
protective-custody process. ER 295-9 ¶ 37; 325-28–29 ¶¶ 62–63. Deputy
Warden Sanders expressed a similar sentiment in reviewing and
denying Fierro’s fourth request for protective custody. ER 295-8 ¶ 30;
325-26 ¶ 53 (11)–(12).
Accordingly, because Fierro has proffered circumstantial evidence
that would allow a reasonable jury to infer that each Defendant drew
the inference that Fierro faced a serious risk of harm, “it is not enough
for the prison officials to claim they did not know about” that risk.
Wallis, 70 F.3d at 1077; see also Weyant, 101 F.3d at 857 (“jury need not
credit [defendant’s] testimony as to his observations or his attitude”).
Thus, a reasonable jury could find that Defendants were aware of the
substantial risk of harm Fierro faced.
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b. The district court properly found a triable issue of fact concerning whether anything short of recommending or granting protective custody was unreasonable.
The district court correctly found a triable issue of fact as to the
reasonableness of the prison officials’ responses to the risk of harm
Fierro faced. ER 421-25. A prisoner’s right to be free from violence
requires that prison officials “take reasonable measures to mitigate the
substantial risk” of harm to the inmate. See Castro, 833 F.3d at 1067.
Courts have held that a prison “official responds to a known risk in an
objectively unreasonable manner if he knew of ways to reduce the harm
but knowingly [or] recklessly declined to act.” See Rodriguez, 508 F.3d
at 620 (quotation omitted); see also Tafoya v. Salazar, 516 F.3d 912, 918
(10th Cir. 2008) (“A prison official may be liable for a substantial risk of
serious harm to inmates . . . if he intentionally refuses other reasonable
alternatives and the dangerous conditions persist.”); Lewis v. Richards,
107 F.3d 549, 553 (7th Cir. 1997) (requiring plaintiff to “demonstrate
that the defendants either took no precautions to avoid a known hazard
which the gang presented, or that the precautions they took ignored the
risk which targeted inmates faced”).
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In assessing the reasonableness of a prison official’s response, “the
trier [of fact] must consider whether, in allegedly exposing the prisoner
to danger, the defendant prison official(s) were guided by considerations
of safety to other inmates, whether the official(s) took ‘prophylactic or
preventive measures’ to protect the prisoner, . . . and whether less
dangerous alternatives were in fact available.” Berg v. Kincheloe, 794
F.2d 457, 462 (9th Cir. 1986). “If the evidence only involves a ‘dispute
over the . . . existence of arguably superior alternatives,’ . . . then the
Supreme Court has indicated that the plaintiff has not met his burden
and the case should not be presented to a jury.” Id.
Here, a reasonable juror could find that Defendants responded
unreasonably to a substantial risk of harm by failing to recommend or
grant protective custody, and that the circumstances here did not
permit a choice between “arguably superior alternatives.” See id.; cf.
Slone v. Dep’t of Ariz. Corr., 308 F. App’x 110, 111 (9th Cir. 2009)
(“Slone failed to raise a genuine issue of material fact as to whether
defendants acted with deliberate indifference when they investigated
his requests and transferred him to a different prison unit as an
alternative to placing him in protective segregation”); see also Comstock
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v. McCrary, 273 F.3d 693, 708 n.5 (6th Cir. 2001) (rejecting prison
officials’ contentions—like the ones Defendants press here—that it is
not a court’s “job to second guess” the officials’ responses to an inmate’s
needs, see Defendants’ Opening Br. 46, and rejecting their “position”
that “if a prison [official] offers some [response], no matter how
insignificant, he cannot be found deliberately indifferent”).
Fierro was targeted by the Border Brothers—a prison gang that is
present in the prison’s general population, that is classified as a
security threat group, and that has targeted Fierro out of a belief that
he is a snitch. This is enough to raise a triable issue as to whether
Defendants acted reasonably by merely circulating Fierro through
multiple general population areas within various facilities of the
Arizona Department of Corrections. See Howard, 534 F.3d at 1242
(inmate’s Eighth Amendment claim survived summary judgment
“because he . . . presented evidence, both direct and circumstantial, that
prison officials knew he faced an ongoing risk from a prison gang with a
substantial presence in the facility, and that they had reasonable
responses available to them”); Rodriguez, 508 F.3d at 623 (reasonable
jury could infer that defendant “knew that the actions he undertook
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would be insufficient to provide [the inmate] with reasonable protection
from violence” because defendant’s recommended action would leave
inmate with “no protection at all from the Latin Kings who had
threatened his life”); Hamilton, 117 F.3d at 749 (triable issue of fact
even when prison officials recommended protective custody because the
failure “to take additional steps beyond the recommendation of
protective custody could be viewed by a factfinder as the sort of
deliberate indifference to inmate safety that the Constitution forbids”).
In assessing the reasonableness of Defendants’ responses, a
reasonable jury could consider the lack of evidence showing that
Defendants were “guided by considerations of safety to other inmates,”
as well as the lack of any other evidence as to why protective custody
was not feasible, to conclude that the prison officials in this case
unreasonably denied protective custody. See Berg, 794 F.2d at 462;
Howard, 534 F.3d at 1241 (“Because prison officials chose to present
absolutely no pertinent evidence to the district court, we must accept
Howard’s allegations that these alternative solutions might have been
reasonable means of protecting his safety”).
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Indeed, there is evidence in the record that would aid a juror in
arriving at the opposite conclusion—that Defendants’ failure to grant
protective custody was not based on safety to other inmates or other
penological interests. That is because Defendants appeared more
interested in first seeing physical evidence of an assault or threat before
being willing to place Fierro in protective custody. See, e.g., ER 295-87
(refusing to grant protect custody because “[i]nmate was not assaulted
at Dakota” Unit); ER 295-115 (denying protective custody and claiming
that inmate was “not threatened” or “assaulted”); ER 295-22 ¶ 27 (citing
Fierro’s failure to proffer a threating note as basis for denying
protective custody); 295-103 (official noted Fierro’s “prior 805 [protective
custody request]” and claimed that Fierro was “manipulating the 805
process . . . .”). As the Howard court explained, a reasonable jury may
rely on prison officials’ statements, like the ones made here by
Defendants, in assessing whether their “failure to attempt the remedies
identified” by the inmate, like protective custody, were not based “on an
inability to” grant the requested relief. See Howard, 534 F.3d at 1241.
In addition, a reasonable jury could also find that granting or
recommending alternative placement in general population was an
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unreasonable “prophylactic measure,” Berg, 794 F.2d at 462, because
protective custody—a “less dangerous alternative,” see id.—was
available and was the only solution that would have easily and
effectively removed Fierro from the “dangerous conditions” posed by the
Border Brothers. See Tafoya, 516 F.3d at 918. Indeed, a reasonable jury
could infer from the number of times that alternative placement did not
abate the risk of harm to Fierro’s safety—five—that granting
alternative placement was a wholly inadequate remedy, particularly
because Fierro “exhaust[ed] all placement options” as of September
2012 and therefore had to be placed in “maximum custody” at the
Florence-Central Unit. See ER 325-107; Comstock, 273 F.3d at 707–08
n.5 (wholly inadequate response “to an inmate’s serious need may
constitute deliberate indifference just as readily as the intentional
denial or delay of treatment”).
Further, that Fierro was in his 50s and had various medical
ailments—which lessened his ability to defend himself—would aid the
jury in finding that Fierro faced a heightened risk of harm from being
assaulted by the Border Brothers. See ER 325-99; Howard, 534 F.3d at
1238 (in assessing reasonableness of the defendants’ responses to
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inmate targeted by a gang with a substantial presence in the facility,
court considered plaintiff’s physical “characteristics” because “a jury
could conclude” therefrom “that [the defendants] knew [the inmate] was
particularly vulnerable to assault”).
Other record evidence would also permit a reasonable jury to find
that Defendants acted unreasonably. First, a reasonable jury could infer
that protective custody was the only reasonable alternative after
considering that Fierro spent about a year in “maximum custody”
without being harmed at the Florence-Central Unit. While in a
“maximum custody” facility, “inmates have limited work opportunities
within the secure perimeter,” “require frequent monitoring,” and
“require escorted movement in full restraints within the institution.”
Ariz. Dep’t of Corr. Order 801: Inmate Classification at 3 § 1.3.1 (Feb.
25, 2010); see also Ariz. Dep’t of Corr. Order 801: Inmate Classification
at 3 § 1.3.1 (July 21, 2017) (containing a similar description of the
conditions of confinement in “maximum custody”).12
12 As indicated in Fierro’s request for judicial notice, Fierro respectfully asks this Court to take judicial notice of Arizona Department of Corrections Order 801 (Inmate Classification) for the limited purpose of
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Second, there is evidence that Fierro’s reports were not
“investigated.” ER 295-147. This would be a violation of prison policy,
ER 295-154 ¶ 1.3.1, and a reasonable jury could rely on Defendants’
failure to request that Fierro’s claims be thoroughly investigated—also
a violation of prison policy—when concluding that their broader,
substantive decisions to deny protective custody were unreasonable.13
See ER 295-155 ¶ 1.6, 295-157 ¶ 1.2.3; 295-159 ¶ 1.2.2; Hope v. Pelzer,
536 U.S. 730, 744 (2002) (relying in part on an Alabama Department of
Corrections regulation to conclude that use of “hitching post” violated
an inmate’s clearly established Eighth Amendment rights); Rodriguez,
establishing the general conditions of confinement for an inmate in “maximum custody.” 13 Fierro does not claim that the violation of prison policies is the sole linchpin on which his Eighth Amendment claims rest. Cf. Estate of Ford, 301 F.3d at 1052 (officials “[f]ailure to follow prison procedures” amounted to inactionable “negligence”). Rather, the violations of the procedure in the policy would aid the trier of fact in determining that Defendants’ broader, substantive decision to refuse protective custody was unreasonable. See generally United States v. Bogle, 689 F. Supp. 1121, 1144 (S.D. Fla. 1988) (procedure “surely affect[s]” substance). After all, a juror could reasonably find that any reasonable official would have asked for further investigation before making the decision not to recommend or grant protective custody after seeing Fierro’s protective custody file—which documented Fierro’s post-assault medical records and other indicia of Fierro’s troubles with members of the Border Brothers Gang.
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508 F.3d at 623 (prison official could be found liable for constitutional
violation where, as here, he had “the means substantially to improve
[inmate’s] safety” and could “set in motion procedures” to do so). In light
of the foregoing evidence, a reasonable jury could find that Defendants
unreasonably responded—and thus were deliberately indifferent—to
the serious risk of harm to Fierro’s safety.14
D. Given the limits of interlocutory review, this Court has no jurisdiction to assess the sufficiency of Fierro’s evidence as to causation. Even if this Court did have jurisdiction, however, it should affirm the district court’s assessment that material triable
14 Notably, this evidentiary showing—which shows a triable issue of fact as to whether Defendants were deliberately indifferent to a serious risk of harm—would be sufficient to deny qualified immunity to Defendants under the law of other circuit courts. See Scinto v. Stansberry, 841 F.3d 219, 236 n.9 (4th Cir. 2016), cert. denied sub nom. Phillip v. Scinto, No. 16-1545, 2017 WL 2734638 (U.S. Nov. 13, 2017) (noting the “special problem of applying an objective qualified immunity standard in the context of an Eighth Amendment claim that is satisfied only by a showing of deliberate indifference,” noting that “[s]ome Circuits have resolved this problem by concluding that qualified immunity is unavailable when the plaintiff presents a genuine dispute of material fact regarding the defendant’s deliberate indifference,” and collecting circuit court cases showing a circuit-split between Ninth Circuit law and the law of other circuit courts) (internal quotations omitted); see also Estate of Ford, 301 F.3d at 1050 (interpreting Supreme Court case law and holding that the approach noted above improperly “collapses the deliberate indifference part of the constitutional inquiry into the qualified immunity inquiry”).
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issues precluded summary judgment on this element as well.
Defendants contend that they “cannot be held liable under the
Eighth Amendment or § 1983” because they “had no personal
involvement in any of the decisions regarding” the particular facility
“where Fierro was transferred after their alternative-placement
recommendations and approvals.” See Defendants’ Opening Br. 33–34.
But as explained above, this Court lacks jurisdiction to assess the
sufficiency of the evidence Fierro has proffered to show “a causal
relationship between” Defendants’ conduct and the harm he sustained.
See Pauluk, 836 F.3d at 1120; Garrett, 254 F.3d at 954.
Even if this Court were to reach Defendants’ argument, however,
the Court should reject it. “[P]ersonal participation is not the only
predicate for section 1983 liability.” Johnson v. Duffy, 588 F.2d 740, 743
(9th Cir. 1978). Indeed, anyone who “causes” the constitutional
deprivation is liable, and the “requisite causal connection can be
established . . . by setting in motion a series of acts by others which the
actor knows or reasonably should know would cause others to inflict the
constitutional injury.” Id. at 743–44. Likewise, this Court has also held
that “direct causation by affirmative action is not necessary” to show a
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defendant’s deliberate indifference to a risk of harm. See Castro, 833
F.3d at 1067.
Here, because four of the Defendants (Ochoa, Sanders, Pruett, and
Forester) failed to recommend protective custody, a reasonable jury
could find them liable for the foreseeable consequences of their
unreasonable recommendations. See Rodriguez, 508 F.3d at 622 (court
erroneously concluded that a defendant could not have caused inmate’s
injury “because he did not have final authority . . . to order [inmate]’s
release from close management” into general population); Kerman v.
City of New York, 374 F.3d 93, 127 (2d Cir. 2004) (“The fact that the
intervening third party may exercise independent judgment in
determining whether to follow a course of action recommended by the
defendant does not make acceptance of the recommendation
unforeseeable or relieve the defendant of responsibility.”).
Moreover, none of the Defendants can escape liability on the
ground that they had “no part in transferring [Fierro] to the prison
where he was harmed.” Defendants’ Opening Br. 34; see also Johnson,
588 F.2d at 743; Anthony v. Schackmann, 402 F. App’x 207, 208 (9th
Cir. 2010) (holding that the “district court erred . . . in granting
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summary judgment as to [inmate]’s retaliation claim on the ground that
defendants did not personally decide to transfer Anthony to segregation
after he complained about their conduct”).
Finally, “foreseeability is normally an issue of fact,” Kerman, 374
F.3d at 127, and a reasonable jury could find that the harm Fierro
sustained was a foreseeable consequence of failing to recommend or
grant protective custody because their actions were insufficient to
remove Fierro from the Border Brothers who were present in the
general prison population of the Arizona Department of Corrections. See
Rodriguez, 508 F.3d at 623 (reasonable jury could infer that defendant
“knew that the actions he undertook would be insufficient to provide
[the inmate] with reasonable protection from violence” because
recommended action would leave inmate with “no protection at all from
the Latin Kings who had threatened his life”). Thus, this Court should
reject Defendants’ invitation to have this Court exceed its jurisdiction
and impose a heightened evidentiary burden on Fierro’s ability to show
that Defendants’ unlawful conduct foreseeably caused his injuries.
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E. Clearly established law fairly warned Defendants that they were violating the Eighth Amendment.
Qualified immunity “shields government actors from civil liability
under 42 U.S.C. § 1983 if ‘their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’” Castro, 833 F.3d at 1066 (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). The foregoing “is not to say that
an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent.” Hope, 536 U.S. at 739 (internal citations omitted); see also
White v. Pauly, 137 S. Ct. 548, 551 (2017) (Supreme Court has
repeatedly held that its case law does “not require a case directly on
point” for a right to be clearly established, but existing precedent must
have placed the constitutional question beyond debate) (citing Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015)).
The failure of a prison official to respond reasonably to a known,
credible threat to an inmate’s safety has long constituted a clear
violation of the inmate’s Eighth Amendment rights. See Farmer, 511
U.S. at 837; Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001); Berg,
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794 F.2d at 460–61. At root, Fierro’s version of the events, when
assumed true, shows a violation of clearly established law because
Defendants’ failure to place him in protective custody left Fierro in a
location within the general prison population where he was not removed
from the serious risk of harm posed by the prison gang that targeted
him. See Case, 301 F.3d at 607 (citing five circuit court cases, including
one from the Ninth Circuit, and holding that defendants were not
entitled to qualified immunity where there was “evidence that the
defendants knew that [an inmate] posed a serious danger to [the
plaintiff], and they could have averted the danger easily either by
leaving [the plaintiff] in segregation . . . or by placing the predatory
[inmate] in segregation or at least by assigning him to work in a part of
the prison not traversed three times a day by” the plaintiff) (citing
Robinson, 249 F.3d at 867); accord Howard, 534 F.3d at 1242 (inmate
targeted by prison gang); Rodriguez, 508 F.3d at 623 (inmate targeted
by prison gang); Hamilton, 117 F.3d at 749; Leach v. Carey, No.
100CV06139LJOGSAP, 2008 WL 618955, at *1 (E.D. Cal. Mar. 6, 2008),
aff’d sub nom. Leach v. Drew, 385 F. App’x 699, 700–01 (9th Cir. 2010)
(affirming district court’s application of clearly established law in
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denying qualified immunity to official who failed to protect inmate from
gang) (citing Robinson, 249 F.3d at 866); Barnard v. Cty. of Los Angeles,
No. CV0505611GAFFMOX, 2011 WL 13213574, at *10 (C.D. Cal. June
23, 2011) (denying summary judgment to defendant who placed inmate
targeted by gang in general population, as facts were “materially
[in]distinguishable from those in” Leach, which relied on Robinson).
Nonetheless, Defendants contend that a reasonable official in
their shoes would not have known that he or she was acting unlawfully.
But many years before the claims in this case arose, this Court held
that “the law regarding prison officials’ duty to take reasonable
measures to protect inmates from violence at the hands of other
prisoners was ‘clearly established.’” Robinson, 249 F.3d at 866 (citing
Farmer, 511 U.S. at 833). Defendants contend that this “define[s] the
constitutional right at issue too broadly.” Defendants’ Opening Br. 28.
But this Court, sitting en banc, has rejected that precise argument. See
Castro, 833 F.3d at 1067. Consistent with Supreme Court precedent,
this Court explained that “a right is clearly established when the
‘contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’” Id.;
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Anderson v. Creighton, 483 U.S. 635, 640 (1987) (contours of right must
be “sufficiently clear that a reasonable official would understand that
what he is doing violates that right.”).
Here, the contours of Fierro’s right, like those of the right of the
inmate in Castro, “were his right to be free from violence at the hands of
other inmates.” See id. Further, as this Court recognized in Castro, the
“Supreme Court need not catalogue every way in which one inmate can
harm another for [this Court] to conclude that a reasonable official
would understand that his actions violated [the inmate’s] right.” Id.
(holding that “duty to protect [inmate] from violence was clearly
established at the time of the incident,” and rejecting defendants’
contention “that such a broad description of that duty is too general to
guide [this Court’s] analysis”).
Defendants also contend that, “[e]ven today, no precedent exists
that clearly establishes that prison officials act unconstitutionally when
they act as [Defendants] acted here in response to prisoners’ protective
custody requests.” Defendants’ Opening Br. 45. Not so. At the time
Fierro made each of his requests for protective custody, courts had
established that recommenders and decision makers can be held liable
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for failing to recommend or grant protective custody where, as here,
prison “officials knew [the inmate] faced an ongoing risk from a prison
gang with a substantial presence in the facility, and that they had
reasonable responses available to them” yet failed to choose a
reasonable response. See Howard, 534 F.3d at 1242; Rodriguez, 508
F.3d at 623 (reasonable jury could find unreasonable defendants’
response to “Rodriguez’s requests for protection” because the defendant
“only” recommended “that Rodriguez be returned to the compound”
where “he would have no protection at all from the” gang “who had
threatened his life”); Hamilton, 117 F.3d at 749 (recommenders and
decision makers could be liable for failing to provide protective custody).
Defendants also suggest that they did not violate clearly
established law because they “followed policy.” Defendants’ Opening Br.
37, 44. But Defendants’ theory presupposes that a reasonable jury here
could only find that they actually followed their policy. Not so. As shown
above, a reasonable jury could find that Defendants violated their own
policy because Fierro’s reports were not investigated and because
Defendants did not request further investigation by others despite the
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well-documented gang threats and assaults in Fierro’s protective
custody file. See supra Pt. I.D.2.b.
Accordingly, because courts have held that prison officials are not
entitled to qualified immunity when they disregard their own policy in
the course of violating the Eighth Amendment, and because a
reasonable jury could find that Defendants violated their own policy
under the circumstances here, qualified immunity is unwarranted here.
See Walton v. Dawson, 752 F.3d 1109, 1122 (8th Cir. 2014) (“violating
an internal policy does not ipso facto violate the Constitution, but when
that policy equates to the constitutional minimum under the totality of
the circumstances,” the court “appropriately focus on the objectively
unconstitutional conduct which breaches the policy”); cf. Yellow Horse,
225 F.3d at 928 (official who actually followed the policy was entitled to
qualified immunity).
Further, even assuming arguendo that Defendants did follow
their policy, courts had made clear in 2011 that prison policies cannot
override constitutional duties. See, e.g., Howard, 534 F.3d at 1241
(“Because prison officials are required to take reasonable protective
action once a risk comes to their attention, [reliance on a policy] does
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not satisfy the defendants’ Eighth Amendment duties because the
limitations of prison grievance procedures cannot override
constitutional duties.”); see also Gardner v. Howard, 109 F.3d 427, 430–
31 (8th Cir. 1997) (defendant’s liability attaches for the violation of a
“constitutional right,” regardless of any violation of “prison policy”).
Finally, Defendants suggest that the district court believed the
“second prong” of the qualified immunity inquiry was to be answered by
the jury. See Defendants’ Opening Br. 41–42. Not so. As shown above,
the district court correctly began its analysis on qualified immunity by
crediting Fierro’s version of the events as true, and then addressed the
clearly established inquiry. See Pauluk, 836 F.3d at 1121. That is the
correct methodology when reviewing qualified immunity claims, and so
the district court did not err by collapsing these twin inquiries into one,
as Defendants claim. See id. Moreover, even if this Court could not
discern the basis for the district court’s denial of qualified immunity,
the proper remedy would be to remand the case—not dismiss the claims
against Defendants. See Maropulos v. Cty. of L.A., 560 F.3d 974, 975
(9th Cir. 2009).
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After properly conducting the two-part qualified immunity inquiry
and reviewing clearly established law at the time, the district court
correctly concluded that pre-existing law fairly warned Defendants
about the unlawfulness of their conduct. See Hope, 536 U.S. at 739.
Therefore, this Court should affirm the denial of summary judgment.
CONCLUSION
For the foregoing reasons, this Court should affirm the denial of
summary judgment and remand the case for a trial on the merits.
Respectfully submitted,
Dated: December 8, 2017 HAYNES AND BOONE, LLP By: /s/ Mary-Christine Sungaila Mary-Christine Sungaila
Pro Bono Appointed Counsel for Plaintiff-Appellee Jose Abel Fierro
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Certificate of Compliance, Fed. R. App. P. 32(a)
1. This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B)(i) because:
■ this brief contains 12,360 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(f).
2. This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because:
■ this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point Century Schoolbook font.
Dated: December 8, 2017
HAYNES AND BOONE, LLP By: /s/ Mary-Christine Sungaila Mary-Christine Sungaila
Pro Bono Appointed Counsel for Plaintiff-Appellee Jose Abel Fierro
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Statement of Related Cases
Appellee is not aware of any related cases currently pending in the
Ninth Circuit.
Dated: December 8, 2017
HAYNES AND BOONE, LLP By: /s/ Mary-Christine Sungaila Mary-Christine Sungaila
Pro Bono Appointed Counsel for Plaintiff-Appellee Jose Abel Fierro
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Certificate of Service
I hereby certify that, on this 8th day of December, 2017, I electronically filed the foregoing Answering Brief with the Clerk of the
Court of the United States Court of Appeals for the Ninth Circuit by
using the CM/ECF system. I further certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
Dated: December 8, 2017
HAYNES AND BOONE, LLP By: /s/ Mary-Christine Sungaila Mary-Christine Sungaila
Pro Bono Appointed Counsel for Plaintiff-Appellee Jose Abel Fierro
4820-9900-6040
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